Opinion
December 16, 1998
Appeal from an order of the Supreme Court, Queens County (Berke, J.).
Ordered that the order is modified by deleting the provision thereof which, upon reargument, adhered to so much of its prior order dated June 80, 1997, as granted the plaintiffs' cross motion for partial summary judgment as against the defendant David Drew on the issue of liability, and substituting therefor provisions, upon reargument, vacating that portion of the order dated June 30, 1997, and denying the cross motion; as so modified, the order dated January 8, 1998, is affirmed insofar as appealed from, with costs to the defendant David Drew.
The instant action arises out of a multi-vehicle collision which allegedly resulted in serious injuries to the plaintiff Howard Domenech. Upon reargument of the plaintiffs' cross motion for partial summary judgment as against the defendant David Drew on the issue of liability, Supreme Court improperly adhered to its original determination granting the plaintiffs' cross motion.
Before Drew can be held liable for the injured plaintiffs injuries, the plaintiffs must demonstrate that Drew's negligence was a proximate cause of the injuries ( see, Dunn v. State of New York, 29 N.Y.2d 313, 318; Resource Fin. v. National Cas. Co., 219 A.D.2d 627, 628; Schumacher v. Queens County Sav. Bank, 204 A.D.2d 526). In an affidavit in support of the cross motion, the injured plaintiff stated, inter alia, that while stopped in traffic, his vehicle was struck from the rear by a vehicle owned by the defendant Maurice Zedeck and operated by Drew, and was then struck by a vehicle owned and operated by the defendant Cesar Zeas. In light of the injured plaintiffs affidavit, a triable issue of fact exists as to whether the injured plaintiffs injuries were proximately caused by Drew's negligence and as to the apportionment of fault as between those defendants ( see, Perez v. State of New York, 215 A.D.2d 740, 741 [during the liability portion of a bifurcated trial arising out of an automobile accident, the fact-finder should be concerned with the apportioning of fault among the parties whose negligence it finds to have been a proximate cause of the accident]).
In light of the foregoing, we need not consider whether the court improvidently exercised its discretion in denying that branch of Drew's motion which was for renewal of the plaintiffs' cross motion.
Rosenblatt, J. P., O'Brien, Sullivan, Krausman and Florio, JJ., concur.